Is the Supreme Court's Decision on Vouchers Really as Historic as Brown V. Board of Education?

by John Barnhill

Mr. Barnhill is an independent historian living in Oklahoma.

"We conclude that in the field of public education the doctrine of 'separate
but equal' has no place. Separate educational facilities are inherently unequal.
Therefore, we hold that the plaintiffs and others similarly situated for whom
the actions have been brought are, by reason of the segregation complained of,
deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."
These are the words of Earl Warren, speaking for a unanimous court in Brown
v. Board of Education, a unanimous decision, rendered on May 17, 1954.

"What's notable and important," Bush said of the 5-4 decision,"is
that the court declared that our nation will not accept one education system
for those who can afford to send their children to a school of their choice
and for those who can't, and that's just as historic." These are the words
of President George W. Bush on the campaign trail in Cleveland, Ohio, 1
July 2002, speaking about a decision of a divided court in Zelman, Superintendent
of Public Instruction of Ohio, et al. v. Simmons-Harris et al, the Cleveland
school voucher case.

So, the voucher decision is as historic as the desegregation one? Probably not.
Chalk it up to hyperbole, politics, and if uncharitable to a hidden agenda.
Cleveland looks a lot more like Plessy v. Ferguson than it does Brown
v. Board of Education. There are a couple of possible parallels though.

For one, the Brown decision did not overturn Plessy's legacy of inferior schools
overnight. The implementing ruling came a year later, and the actual desegregation
of schools came about over decades, over opposition by those who liked the status
quo. It had little lasting benefit, falling victim to tokenism and white flight
- flight oddly enough, into the arms of private schools similar to some that
the Cleveland decision will support.

For another, despite its shortcomings in integrating schools, Brown did lay
a foundation for the broadening of civil rights to cover many other aspects
of American life. Not in a vacuum, and not de novo (there were predecessor incremental
steps from the late 1930s and 1940s). Will the Cleveland voucher ruling, allowing
state support for religious institutions as long as they're just part of the
general community of schools, just another option - will this ruling encourage
the near moribund movement to give government money to other faith based services?
That's the potential impact that will be historical.

The dissimilarities outweigh the similarities. Brown was a radical reversal
of a previous court, not a mere extension of current practice to a new arena.
Brown was so radical that the court did not dare take on the cases until Warren
was sure that the decision would be unanimous, not 5-4. Brown overturned segregation
in all aspects of life.

The Cleveland decision is narrow, and close, and subject to reversal at the
change of one justice. It simply adds to the long list of subtle readings of
the establishment clause that courts have made over the years, including the
1998 ruling that Wisconsin could aid parochial schools. In extending state aid
to another element of religion, expands on earlier rulings that the state can
provide use of school buildings and buses and such as long as those state supports
are applied to non-religious schools as well. It is more like the extension
of Plessy, originally a case of railroad accommodation, to all aspects of African
American life. After Plessy, expansion of the initially narrow ruling meant
that blacks were excluded from social, economic, and political participation
except when they received an inferior copy of white resources - as in education,
the right to vote, access to the legal system.

Brown made clear that the system in place was wrong, violated a specific provision
of the Constitution, the Fourteenth Amendment, and had to go. Cleveland merely
adds a nuance to an already over-nuanced interpretation of another provision,
the First Amendment. For this small decision to come close to either Plessy
or Brown, it has to define clearly what the First Amendment means, and it comes
nowhere close. For now, we're still in the shadow, waiting for the court to
redefine the establishment clause. Is this prelude to another Brown or Plessy,
or another step down the path to ambiguity and ceremonial deism. Time will tell,
but yet another 5-4 decision does not bode well for another redefinition of
the Constitution.